Unfair dismissal claims in Australia are a crucial legal avenue for employees who believe they have been terminated unfairly. If you’ve recently lost your job, understanding the process and eligibility requirements can help you take the right steps. This article covers everything from qualification criteria to the role of conciliation and representation. See previous related articles
What Qualifies as Unfair Dismissal?
To lodge an unfair dismissal claim with the Fair Work Commission (FWC), you must meet specific criteria:
- Minimum Employment Period: You must have been employed for at least six months (or 12 months for businesses with fewer than 15 employees).
- Lodge Within 21 Days: Employees have 21 days from the date of termination to file an application.
- High-Income Threshold: If you earn above the high-income threshold (currently $167,500 as of FY 2023-24 and subject to annual review) and are not covered by a modern award or enterprise agreement, you may not be eligible to claim unfair dismissal.
- Application Fee: There is a filing fee (currently $83.30 but subject to change) that must be paid when submitting your application.
The Unfair Dismissal Process
Step 1: Filing an Application
Once an employee files an unfair dismissal claim with the FWC, the matter does not immediately go to a hearing. Instead, the Commission assigns the case to its conciliation team.
Step 2: Conciliation Process
Conciliation is an informal dispute resolution process where a conciliator—not a Fair Work Commission Member—helps both parties negotiate a resolution. Most unfair dismissal claims are settled at this stage, typically involving:
- Compensation Payments: The amount varies depending on the strength of the case and the circumstances surrounding the termination.
- Confidentiality Agreements: Settlements often include clauses that prevent either party from disclosing the details of the case.
Many cases settle in conciliation, but expert guidance is essential during this process. A strong understanding of workplace laws and negotiation strategies can significantly impact the outcome.
Step 3: Proceeding to a Hearing
If conciliation fails, the case moves to a formal hearing before an FWC Member. However, before the hearing begins, the FWC Member will often attempt to facilitate a resolution to avoid further costs for both the applicant and the respondent.
At the hearing, both parties present evidence and arguments, and the FWC Member makes a legally binding decision. Potential outcomes include:
- Reinstatement of the Employee
- Compensation (capped at six months’ pay)
- Dismissal of the Claim
Who Can Represent You?
Employees and employers can represent themselves or seek professional representation. You can engage:
- Lawyers: While legal representation is an option, obtaining permission from the FWC is sometimes required.
- Paid Agents: Consultants specialising in employment relations (ER) and human resources (HR) can represent parties in the process.
- HR and ER Consultants: Experienced consultants often take a pragmatic approach, focusing on strategic negotiation and resolution to avoid costly hearings.
Why Expert Guidance Matters
Having an employment relations expert involved before termination occurs can help anticipate potential claims and mitigate risks. The strength of an unfair dismissal case depends on procedural fairness, valid termination reasons, and how well an employer documents performance management.
FAQs About Unfair Dismissal in Australia
1. What is the time limit for lodging an unfair dismissal claim?
You must lodge your claim with the Fair Work Commission within 21 days from the date of your dismissal.
2. Can I claim unfair dismissal if I was a casual employee?
Casual employees may be eligible if they have worked on a regular and systematic basis for at least six months (or 12 months for small businesses) and had a reasonable expectation of ongoing work.
3. How much compensation can I receive for unfair dismissal?
The maximum compensation is capped at six months’ pay, but the actual amount depends on factors such as lost earnings, the strength of the case, and mitigating circumstances.
4. Can I be reinstated if I win my case?
Yes, but reinstatement is rare. Compensation is the more common outcome in unfair dismissal cases.
5. Do I need a lawyer for an unfair dismissal claim?
No, but legal or expert representation can improve your chances. Many people choose HR and employment relations consultants for a more cost-effective and pragmatic approach.
Final Thoughts
Unfair dismissal claims can be complex, and the outcomes vary based on the specifics of each case. Understanding your rights, the process, and engaging the right expertise can make a significant difference in achieving a favourable resolution. If you need guidance through the unfair dismissal process, seeking expert advice is essential to navigate negotiations effectively and secure the best possible outcome.
Need help with an unfair dismissal matter?
David is an employment relations specialist, experienced Industrial Advocate and independent HR consultant. He works with clients Australia-wide.
David Haydon
Employment Relations Specialist, Workplace Investigator and HR Consultant